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March 17, 2021
OSHA launches focused COVID-19 enforcement

On March 12, the Occupational Safety and Health Administration (OSHA) launched a National Emphasis Program (NEP), focusing enforcement on companies at which large numbers of workers face serious risk of COVID-19 infections. The NEP also prioritizes whistleblower protection enforcement for workers who face retaliation for reporting unsafe or unhealthy workplace conditions.

NEP enforcement targeting high-hazard industries supplements OSHA’s nonprogrammed COVID-19 inspections initiated in response to complaints, referrals, and severe incident reports.

Targeted industries

Primary target industries of the directive (DIR 2021-01 (CPL-03)) include ambulance and home healthcare services; correctional facilities; department stores, groceries, supermarkets, and restaurants; healthcare and long-term care facilities; meatpacking and poultry processing facilities; and warehouses and storage facilities.

Secondary, non-healthcare industries targeted by the NEP include establishments in the construction, critical manufacturing, energy, food and agriculture, and transportation and logistics sectors.

The agency also issued an updated Interim Enforcement Response Plan, prioritizing the use of on-site workplace inspections where practical or a combination of on-site and remote inspections. The updated plan rescinds an earlier memorandum that took effect on May 26, 2020.

“This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure,” Jim Frederick, principal deputy assistant secretary of Labor for occupational safety and health, said in an agency statement.

“With more people being vaccinated and the number of infections trending down, we know there is light at the end of the tunnel. But until we are past this pandemic, workers deserve a Labor Department that is looking out for their health,” Frederick added.

OSHA said it would ensure that agency compliance safety and health officers (CSHOs) have personal protection necessary for on-site inspections. OSHA will evaluate all risk and utilize appropriate protective measures for conducting on-site inspections, including appropriate respiratory protection and other necessary personal protective equipment (PPE).

The Department of Labor’s Office of the Inspector General (OIG) recently faulted OSHA for its failure to protect workers by reducing the number of on-site inspections at the same time the agency received an increased number of health and safety complaints since the onset of the pandemic.

Applicable standards for COVID-19 investigations include occupational injury and illness recordkeeping and reporting (29 CFR Part 1904), PPE (29 CFR §1910.132), respiratory protection (§1910.134), sanitation (§1910.1410), accident prevention signs and tags (§1910.145), and access to employee exposure and medical records (§1910.1020), as well as the General Duty Clause §5(a)(1) of the Occupational Safety and Health Act 0f 1970. While employers are required to provide respiratory protection for all healthcare employees providing direct care for patients with confirmed or suspected cases of COVID-19, enforcement discretion procedures still apply in instances of respirator shortages.

Biden administration guidelines

On January 29, the agency issued stronger employer guidance for protecting employees from the SARS-CoV-2 virus. Employer guidelines include conducting workplace hazard assessments, identifying control measures to limit the spread of the virus, adopting policies for employee absences that encourage potentially infected workers to remain at home, ensuring that coronavirus policies and procedures are clearly communicated to both English- and non-English-speaking workers, and implementing antiretaliation procedures to protect employees who report health and safety concerns.

Additional recommendations include:

  • Designating a workplace coordinator with responsibility for all COVID-19 policies and procedures;
  • Utilizing the hierarchy of controls—elimination or substitution, engineering controls like installing physical barriers, workplace administrative policies, and PPE—to protect employees from SARS-CoV-2 exposures;
  • Considering protections like telework or work stations in less dense, better ventilated facilities for workers at higher risk for severe illness, such as older adults and those who have serious underlying medical conditions that put them at a higher risk for severe illness from COVID-19;
  • Educating and training employees on COVID-19 symptoms and hazards and the policies and procedures established and implemented for their protection;
  • Isolating workers who show COVID-19 symptoms at work and instructing infected or potentially infected workers to isolate or quarantine at home; and
  • Performing enhanced cleaning and disinfection after people suspected of having or confirmed to have COVID-19 have been in the workplace.

OSHA acknowledged that some state plans adopted emergency standards or guidelines with enforcement plans similar to the NEP. Last year, California, Michigan, Oregon, and Virginia adopted emergency temporary standards (ETSs) for workplace COVID-19 exposures. Virginia established a permanent COVID-19 standard earlier this year.

OSHA encouraged the other state plans to adopt the federal NEP. States must notify OSHA of their intention to adopt the NEP within 60 days of its issuance.

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